Citation Nr: 0513994
Decision Date: 05/23/05 Archive Date: 06/01/05
DOCKET NO. 04-01 060 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Huntington, West Virginia
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
C. L. Wasser, Counsel
INTRODUCTION
The veteran served on active duty from December 1950 to
August 1952. He died in September 2001, and the appellant is
his widow.
This case comes to the Board of Veterans' Appeals (Board) on
appeal from a March 2002 decision by the RO in Huntington,
West Virginia that, in pertinent part, denied service
connection for the cause of the veteran's death.
The Board notes that in its March 2002 rating decision, the
RO granted entitlement to DIC benefits under 38 U.S.C.A.
§ 1318.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
Although further delay is regrettable, the Board finds that
additional development is necessary prior to appellate
review.
To establish service connection for the cause of the
veteran's death, the evidence must show that a service-
connected disability was either the principal cause or a
contributory cause of death. For a service-connected
disability to be the principal (primary) cause of death, it
must singly or with some other condition be the immediate or
underlying cause or be etiologically related. For a service-
connected disability to constitute a contributory cause, it
must contribute substantially or materially; it is not
sufficient to show that it casually shared in producing
death, but rather it must be shown that there was a causal
connection. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. §
3.312 (2004).
Governing regulation provides that generally, minor service-
connected disabilities, particularly those of a static nature
or not materially affecting a vital organ, would not be held
to have contributed to death primarily due to unrelated
disability. In the same category there would be included
service-connected disease or injuries of any evaluation (even
though evaluated as 100 percent disabling) but of a quiescent
or static nature involving muscular or skeletal functions and
not materially affecting other vital body functions.
38 C.F.R. § 3.312(c)(2) (2004). Service-connected diseases
or injuries involving active processes affecting vital organs
should receive careful consideration as a contributory cause
of death, the primary cause being unrelated, from the
viewpoint of whether there were resulting debilitating
effects and general impairment of health to an extent that
would render the person materially less capable of resisting
the effects of other disease or injury primarily causing
death. 38 C.F.R. § 3.312(c)(3) (2004).
During his lifetime, the veteran was service-connected for
residuals of shell fragment wounds to both buttocks and the
low back sustained while engaging the enemy in the Korean
Conflict. He was awarded the Purple Heart Medal. Service
connection was also in effect for a circulatory deficiency of
the right leg, scars, inactive otitis media, and hearing
loss. His combined disability evaluation was 100 percent.
Post-service medical records reflect treatment for bilateral
deep vein thrombosis, among other conditions.
Terminal medical records from West Virginia University
Hospital dated in September 2001 reflect that the veteran was
diagnosed with occlusion and stenosis of multiple and
bilateral precerebral arteries. His death certificate
reflects that he died of cerebral infarction due to or as a
consequence of vascular thrombosis.
The appellant essentially contends that the veteran had
frequent blood clots due to his service-connected
disabilities, and that he was on anticoagulant medication for
this condition for many years. She contends that these blood
clots led to his death from vascular thrombosis.
The Board finds that a medical opinion is necessary to make a
decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002).
The examiner should be asked to opine as to whether any of
the veteran's service-connected disabilities, or the
medication used to treat any of these disabilities, caused or
contributed to his death.
In light of the foregoing, the case is remanded for the
following actions:
1. The RO should forward the claims file
to a VA vascular specialist, for a
medical opinion regarding the cause of
the veteran's death.
After reviewing the claims file the
physician is requested to render opinions
as to the following:
(a) Whether it is as likely as not that
the veteran's fatal vascular thrombosis
and cerebral infarction were related to
his military service?
(b) If no, whether it is as likely as
not that any of the veteran's service-
connected disabilities, or the medication
used to treat any of these disabilities,
caused, contributed to his death, or
resulted in such debilitating effects and
general impairment of health to an extent
that would render the veteran materially
less capable of resisting the effects of
disease or injury primarily causing
death.
A complete rationale for any opinion
expressed should be included in the
examination report.
2. Thereafter, the RO should
readjudicate the issue of entitlement to
service connection for the cause of the
veteran's death, to include a review of
the service medical records. If the
benefits sought are not granted, the RO
should furnish a supplemental statement
of the case to the appellant and her
representative. The appellant and her
representative should be given time to
respond. Thereafter, the case should
then be returned to the Board for
appellate review.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
_________________________________________________
ROBERT P. REGAN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).